the election that says the democrats now should be in control of the senate but the republicans just aren't giving it up. it does suggest, however, that controlling that chamber for however brief a span of time might be worth something to somebody. the republicans keep saying oh, it's not worth why aren't you giving it up? watch this space tomorrow. that does it for us tonight. we will see it again tomorrow night. now it's time for "the last word" with lawrence o'donnell. have a good one. when is it good for a democratic presidential candidate to talk about income taxes? never. except when the republican candidate has swiss bank accounts, parks hundreds of millions of dollars offshore and pays less than the lowest income tax bracket. >> it's time to let the tax cuts for the wealthiest americans to expire. >> ready for another bruising showdown about tax fairness? >> tax bracketology. >> we don't need more top-down economics. >> the battle over the bush tax cuts is back. >> tax cuts. >> tax cuts for the wealthy.

>> i'm not proposing anything radical here. >> mr. obama called for extending the tax cuts for people making less than $250,000. >> making less than $250,000 a year. will be another kick in the gut to the middle class in america. >> if you say so, mr. romney. >> we've tried it their way. it didn't work. >> i think it's about envy and class warfare. >> it's not class warfare. it's math. >> the fight for the middle class is on. >> democrats launched an coordinated assault. zul hift out result on his refusal to release more tax returns. >> he has a shell corporation in bermuda. >> investments in the caymans. >> he's had a bank account in switzerland. >> i've never known of a swiss bank account to build an american bridge. >> he's disconnected. >> wealthy and out of touch. >> if the bain attacks were working, these attacks will work.

>> mitt romney said he's worn a garbage bag as rain gear. he had to dump out the hundred dollar bills and throw the bag over his head. 176 days from now your income taxes are going up. it's already written into law. if congress does absolutely nothing, current income tax rates expire on new year's eve, and on january 1st income taxes will automatically go up. it will be a huge tax increase. on january 1st everyone except those currently in the 15% bracket will see their income taxes go up. the biggest income tax increase will actually hit the lowest bracket, the lowest income earners, those in the 10% bracket will see their rates go up 50%. by comparison, all of those in the top income tax bracket will

see their rates go up only 13%. and no one, no one in congress or the white house wants to see all of this happen. president obama does want to see this happen. he wants to see the top two brackets go up, but only the top two. he wants to prevent all the other brackets from going up. in order to stop all of this from happening, 176 days from now, congress has to pass a bill preventing it from happening. the republicans want to pass a bill preventing all of this from happening, and the democrats and the president want to pass a bill preventing most of this from happening, but allowing the top two rates to go up. now, if any of you spent your fourth of july holiday doing your christmas shopping and your friending told you you're crazy, you should listen to your

friends. you have plenty of time for christmas shopping. you have 169 shopping days left until christmas. if you're congress and you have 176 legislative shopping days left to pass the biggest tax legislation in years, then you better get to work on it right now. don't wait until the last minute as we approach this fiscal cliff. you're going to be hearing that phrase a lot, a fiscal cliff between now and january 1st because in addition to the tax increase scheduled for january 1st, there is also a large cut. 500 billion in defense spending scheduled to go into law on january 1st. the combination of big government spending cuts and a big tax increase is the fiscal cliff that many economists fear would be such a negative jolt to the economy that would slow down our economic recovery. so neither party, democrat or

republican, wants to go off the fiscal cliff on january 1st. to avoid the fiscal cliff, not only do they have to write a new tax bill and a new defense spending bill and pass them both before january 1st. they have only 176 legislative shopping days to do it. so if you want congress to do something before january 1 and you start talking about it right now, you would not be jumping the gun. you would not be doing your christmas shopping in july. if you need congress to do something by new year's eve, don't start talking to them in december.

you start talking to them today, and that's what the president did today in the east room of the white house. >> i'm not proposing anything radical here. i just believe that anybody making over $250,000 a year should go back to the income tax rates we were paying under bill clinton back when our economy created nearly 23 million new jobs, the biggest surplus in history, and plenty of millionaires to boot. >> the president urged congress to take action on what they can agree on, which is all of these tax rates except for the top tax rates, and leave what they disagree on to be dealt with after the election. >> in many ways the fate of the tax cut for the wealthiest americans will be decided by the outcome of the next election. my opponent will fight to keep them in place. i will fight to end them. >> in other words, the president is saying, let's pass a bill preserving all of the tax rates we agree on, and let's let the voters decide on what to do with the top tax rates, re-elect president obama and the rates go

up slightly, only a few percentage points. elect mitt romney and do a day one tax cut for the high income earners. mitt romney hates that idea. he doesn't want to reach an agreement on everything they already agree on, which is most of the tax rates. he doesn't want to reach an agreement with the president on everything they agree on. he wants to keep fight over all the tax rates together, and republicans agree with him on this because they know if they pass a bill on the tax rates that they agree with the president on, which is most of them, then everyone will be able it to see that the real fight is over nothing but lowering the top tax rates a few points. that's all reps really care about, but mitt romney knows he can't go out there and say, look, we shouldn't make a deal on doing what we agree on, because that would expose the

fact we care about the top income tax rates. instead of saying that, his handlers gave him this to say. >> what the president is proposing is therefore a massive tax increase on job creators and on small business, small businesses are overwhelmingly being taxed not at a corporate rate but at the individual tax rate. so successful small businesses will see their taxes go up dramatically, and that will kill jobs. >> and with the obama campaign trying to turn this week into tax week in the campaign, it seems like the perfect time to remind american voters that no matter what congress does with income tax rates, mitt romney will still pay less than the lowest income tax rate. >> the next president in the next four years, somebody has to tackle comprehensive tax reform, and they have to deal with

sheltering income like it appears mitt romney is doing in bermuda, in the caymans, in switzerland. when i pick a bank, i pick one mere my house because there's an atm i can get cash out of it. i don't think you pick a bank in switzerland because there's an atm near the house. >> joining us is krystal ball and steve cornaki. the idea that you get an anti-tax candidate running with a swiss bank account, with money in the cayman islands, it's never been this convenient for the democrats. it's always been a very awkward subject for the democratic candidate who is trying to be more responsible on taxation. romney makes this a sweet spot for the obama campaign. >> it's beautiful. when you add to that the hamptons fund-raisers this weekend and all of the wonderful quotes that came out of that and you ask the american people, okay, do you really want to finance a tax cut for these people? i think the answer becomes very clear. and the response that, oh, we

need comprehensive tax reform, he just has in the republican party absolutely no credibility on seriously wanting comprehensive tax reform. do we really want to trust the guy who's got his money parked in the cayman islands to close tax loopholes for us? that doesn't make sense to me. >> let's listen to what mitch mcconnell said about the way he said this tax situation should be handled. >> we've got the fiscal cliff coming at the end of the year. what we ought to be doing is extend the current tax rates for another year with a hard requirement to get through comprehensive tax reform one more time. >> oddly enough, steve, he wants to do exactly what he's proposed doing in the past, which is why don't we extend the current tax rates, otherwise known as the bush tax cuts. >> right. when comprehensive tax reform drags out or hits a dead end, we say, oh, no, we can't let these things expire. i think it's worth putting in perspective. you understand this. what obama is trying to pull off here, it's been 22 years, 1990 since a single republican in the house or senate signed off on

an income tax increase. the last time it happened was 1990 and it caused a rebellion in the republican party and it led to pat buchanan challenging george bush and newt gingrich's rise and all these things. we come to a moment here after the election. let's say obama gets re-elected, republicans have to choose. they still control the house no matter what in that lame duck session, and they have to decide. are we willing to cave on 22 years of absolute rigidity on taxes in the interest of sparing 98% of the people a tax hike? if we can't have it it all, we'll allow a tax hike to take place. >> is the president ready to go to the mat over this? is he willing to let the bottom income tax rates of the 98% go up in order to not raise rates on the top percents.

that's the other people and he and robert gibbs have been very clear they're not held hostage this time. they're willing to go to the mat this time whereas the last negotiation, i don't think they were willing to and instead they used it as a bargaining chip to get other things they wanted. >> it's different from the last one. what i hear from some democratic senators and now even from some republican senators something they will not say publicly, they're willing and, in fact, some believe they need to go off the cliff on january 1st. they need to allow the tax rates to expire, have every rate go up including the bottom rate to go up in order to then on january 2nd put real pressure on congress including republicans in congress to pass some kind of

adjustment to this without the power of actually having the rates increase. the democrats -- some democrats believe they can't get anything. in other words, once all the rates have increased, everything you do after that is a tax cut. even if you reduce four out of the six rates. >> there's your way around that republican pledge. >> some republicans are secretly saying we need you to do that. that's the only way to vote responsibly in a tiny number of republicans. >> the democrats control the senate in the lame duck session. that means you have ben nelson and joe lieberman voting with the democrats still there. a guy like tester and he gets re-elected. does he vote for anything that could be perceived as a tax hike? you deal with these people in the senate on the democratic side so the logic works for them, too. >> there are democratic senators who learned this lesson the last time around, if we let it go to the last minute and don't get a deal and we let them know it's

okay to not get a deal, the republicans see they're in an impossible position in january. >> it's a game of chicken. if they show we're willing to go off the cliff. you have a stronger bargaining position, but as you say you give a lot of conservative democrats in red or purple states and republicans who signed onto this grover norquist pledge, you give them an out. that makes sense. >> steve, the great thing politically and i thought i'd say this about a democratic candidate for president in talking about taxes is you get always to bring it back to mitt romney's tax returns, especially the ones we have not seen. >> right. i think right now in this campaign talking about the bush taxes and doing away with the wealthy, this is a political winner for obama right now. bill clinton asked the top 2% to pay more. the people that got rich under reagan and bush, we ask them to pay more. that's what clinton ran in '92. in ''93 he raised taxes in the

1.8%. the public attitude on things is funny. i think obama is on solid ground here, but i'm curious in december and into january how it's perceived by the voters. >> they bought into the affordable care act as the largest tax increase in the history the mankind. >> second biggest. >> it depends where you are on the calendar when it was the biggest. yeah, the romney liability on taxation seems to be politically unique. we've had wealthy republican presidents before george h.w. bush, wealthy family, but their personal wealth was never perceived to be part of their actual governing decisions. bush had republican philosophy about taxation. you saw very rich democrats who actually had a nonself-interested tax policies. the fact that these policies are

all to romney's only self-interest is the peculiar part of the politics. >> i think it's that. i don't think it's his wealth that's the problem. i think it's the fact that he's paying a lower income tax rate than the lowest marginal income tax rate. he has all these offshore accounts, swiss bank accounts, cayman islands and bahamas and there's a terrible contrast he has with his father who was exactly the opposite. who was the model of transparency releasing 12 years of income taxes saying that it would be -- it could be a fluke if you only released one year. paul krugman was writing today that at the time they were reporting george romney was going out of his way to not take advantage of the loopholes in the tax system. as a result he was paying 36% -- 37%. it's all the exact opposite of mitt romney, and i think americans feel, okay, yes, you're following the lettering the law.

there's a difference between a legalistic argument and moral argument. do you really believe in america? do you really believe the things you're saying when you're exploiting these loopholes to your own benefit? >> crystal and steve, thanks for joining me tonight. especially you steve coming in on dry cleaner day. i so appreciate that. >> i'm sorry. i'm scared of the dark. >> thank you both very much for joining me tonight. coming up, what do tax rates mean for job creation? ezra kline joins me next. in the rewrite tonight remember when jon stewart went on a cnn show just to say how bad that show was? we have a perfect reply good excuse to show you that video again tonight. that's coming up. ask me what it's like when my tempur-pedic moves.

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remember when jon stewart went on crossfire to hear how much he hated crossfire, a left/right argument show on cable news. he couldn't stand it. not long after he went on crossfire to say how much he hated it, crossfire was canceled

and that kind of tv is not really what's happening on cable news anymore in this country. in some countries they're still doing crossfire tv. we'll find out what's happened to crossfire tv and just how bad it can get out there in tv land. that's in tonight's rewrite. [ male announcer ] what's in your energy drink?

♪ power surge, let it blow your mind. [ male announcer ] for fruits, veggies and natural green tea energy... new v8 v-fusion plus energy. could've had a v8. we know what those who are opposed to letting the high-end tax cuts expire will say. they'll say that we can't tax job creators, and they'll try to explain how this would be bad for small businesses. here's the thing that you have

to remember. the proposal i make today would extend these tax cuts for 97% of all small business owners in america. by the way, these tax cuts are also the tax cuts that are least likely to promote growth. joining me now is our venture capitalist and author of "the gardens of democracy" and ezra kline. ezra, walk us through what we know about the effect of tax rates on job creation. >> interestingly not actually that much. it is very hard to pull apart all the different things that go into job creation to figure out what role tax cuts are playing. what we have an understanding of is we have tax cuts and overall

economic growth. we know that they're part of it, and it matters how you create your tax code. they're not as republicans put it the determinative part. you think that the economy is a simple equation in which taxes are on one side and growth is on the other. if you get taxes and get everything else right. since 1950, the period of time in which americans had the most impressive growth was when our tax rate, our highest marginal tax rate was between 85% and 90%. the second high was at 39% and the third highest at 39.6% and one of the lowest was in the bush years down at 35%. so there's not a really good record of low marginal tax rates on the richest americans leading to very impressive levels of growth and/or job creation. >> nick, you've been out there in this economy making an awful lot the money for yourself. hundreds of millions of dollars, seeing others do it. working with job creators. what do you hear just

anecdotally in the world of real job creators. people who run countries in terms of what factors determine when they do their hiring? >> i just have to start by saying that it's just dead false that people who run companies are job creators. this idea is a way of completely misunderstanding how economies work. the people who create jobs are our nation's middle -- is the middle class. when the middle class consumer buys something from a company, that is what creates jobs. that's why it doesn't matter very much if rich people pay higher rates of tax. the true engine of job creation is a thriving middle class, and, you know, if if somebody like me who makes millions or tens of millions of dollars a year pays a little more, it has virtually no effect on growth. >> and ezra, we hear warren buffett say he's never made a business decision based on what marginal tax rates were. that like nick he looks at things like consumer demand and this sort of thing to determine when you should make different

kinds of moves in this economy. >> yeah. i mean, imagine an marginal tax rate is 25% or 50% and you made another dollar. you might not care about the profit if it's 50 cent rather than 25, but it remains a profit. that's something to what nick said. peter diamond is a nobel prize winner economist. he said when you're worried about job creation, you're not thinking about people. you are thinking about businesses. businesses are what create jobs, and primarily the kind of businesses that create jobs are small, new ones. we have much more job growth in new firms than in older firms or larger firms. when you worry about small, new firms, you worry about their ability to get capital and the

amount of money they need to expaend. if you're a big firm, it's easy to borrow and if you're rich it's easy to start a firm. if you don't have good access to the credit market and started by someone without a lot of money. people without a lot of money have enough money to help lend you the amount of capital to get started. they can take it out of their house and get it loaned over from friends. this is how a lot of small businesses work. in that world what you really want for businesses to thrive particularly ones that wouldn't thrive otherwise is for them to be a progressive distribution of income. you need to have money in places where it's hard to get money in order for these good ideas to get off the ground and expand and hire people. >> nick, i really like your correction of your language about this one, which is our conceptual frame, which says job creators create the demand for the product. we will call what republicans are referring to as job

creators. let's refer to them as the hirers. they do the hiring in effect. the people who own the companies and run the companies doing the hiring. making a hiring decision involves a set of factors, and when you hear republicans say that the hiring decision is based on what the income tax rate is, what would your response be to them? >> it's the silliest lie ever told. look, anyone who ran a business knows that creating jobs is the course of last resort for capitalists. it's what we do if and only dp rising consumer demand requires it. if there was a shred of truth to the idea that the more profitable the company was or the more capital valuable or the more jobs we create there was, then today we'd be drowning in jobs. american corporations sit on $2 trillion of cash. the nation is awash in capital. it starts with this misconception that businesses

are job creators. it's like a business person calling themtsz a job creator is like a squirrel claiming to create evolution. it's not true. it's the other way around. the romney people put it beautifully this week when one of them said that there are people who are the engines of the economy, the job creators and everyone else relies on that engine. this way of expressing it shows perfectly how deeply we misunderstand the economy. the economy is characterized by feedback loops like any eco-system, and it's about a circle of life feedback loop between customers and businesses. >> ezra, basic economic courses teach basically that, but politics loses that -- the concept completely. >> politics is never known for being economically sophisticated. you can't have jobs and you

can't have expansion without people there to buy things. the idea is what we need right now is lower tax rates on the business side. there's something to that. it does become more profitable to hire people, for instance, if you pay lower payroll taktss, but that's a marginal change. the reason you hire people is because you need to hire them because there are profitable opportunities. you can only take advantage of if you have more people. until you get money into the pockets of the people who buy things, which you can do by hiring them by building infrastructure and give them tax cuts that affect people with a high propensity to spend and use the money to buy groceries, you don't see fast job creation. not because there's something deeply wrong with the economy or taxes are at that too high and businesses are doing what they should be doing and not expanding when they don't have profltable opportunities. when they have enough sales to expand, they will expand. >> exactly. >> nick, senator money moynahan talked about see mantic infiltration. in one side can get the other stid to use their language, then

they have won. i think your point about who is a job creator is a perfect example of how see mantic infiltration has been at work here in our politics and in our media. >> yes. i agree completely. i think the fight we have over economics in this country is going to come down it to who do the nation's citizens believe are job creators? rich business people like me or the middle class? we had 30 years of trying out the idea that rich people like me are job creators and we've seen what happened. i think it's time to try a new way. >> nick and ezra, thank you both for joining me tonight. >> thanks so much for having us. >> coming up, the dangers of having very sharp, angry disagreements on live television and why i don't like to do that kind of argument thing here on this show. i will show you why coming up in tonight's "rewrite." a new report indicates the split in the supreme court is now very deep and permanent. these nine judges are not the

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mitt romney went where the money is this weekend. the beach homes of billionaires. congresswoman debbie wasserman schultz will join us with her reaction. she will finish saying what fox

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only at your ford dealer. so, to sum up, you take care of that, you take care of these, you save a bunch of this. that works. yesterday mitt romney held three fund-raisers in the most affluent section of long island where billionaires go to the beach. tickets ranged from 5,000 for lunch to 25,000 for a vip photo reception. the next fund-raiser was at the home of clifford sobel and the ambassador to george w. bush and the big event was a dinner at the southampton home of billionaire industrialist david koch. it was 75,000 a couple. "the new york times" quotes one woman waiting in line in her black range rover.

is there a vip entrance? we are vip. then there's the new york city donor, the "l.a. times" caught up with. she was also driving a range rover and did not want to give her name, but she did say that mitt romney needed to do a better job connecting. i don't think the common person is getting it. nobody understands why obama is hurting them. we've got the message, but my college kid, the baby-sitters, the nail's ladies, everybody who has the right to vote, they don't understand what's going on. i just think if you're lower income, one, you're not as educated, two, they don't understand how it works. they don't understand how the system works. they don't understand the impact. joining me now is someone that understands the impact florida congresswoman debbie wasserman schultz, chairwoman of the national democratic committee. >> good night, lawrence. >> she included among the people who just don't get it her own college kid who apparently is

affluent enough that, you know, the mother can go to a $75,000 a couple event. >> well, i think actually what the reality is that working folks, working families like the nail ladies and the cleaning ladies and even college kids of wealthy people understand that president obama has been fighting hard to make sure that we can create jobs, an opportunity for them, invest in education and innovation. make sure that we can outcompete and outinnovate and outeducate the rest of the world so when we are competing on a global stage that america can be on top consistently in industry and in education and in innovation. mitt romney and the republicans have been focused so much on those folks who were guests at

that -- at those events that -- and making sure that they can do even better than they already are that they've sort of left the nail ladies and the college kids out in the cold. i think that's what they understand. >> congresswoman, i couldn't help but wonder if maybe that woman's college kid -- we don't know if it's a male or female college kid. i'll pick daughter. we'll decide it's a daughter. maybe her daughter actually has a roommate at college or someone at college who is dear to her and she knows well who is struggling with student loan debt. maybe that might be something that her college kid knows about that mom doesn't know about. >> or maybe she has a friend that doesn't have health insurance coverage. without being able to stay on her parents' insurance, which she can now do until she's 26 years old. so there's been so much progress made for working families. finally they have a champion in the white house.

i think that's why folks like those people that the donor named so-called don't get it in that woman's eyes. >> there was an odd moment. you were on fox news yesterday. it was an odd moment where they ran out of time apparently on a question for you. they were talking about mitt romney's offshore accounts and the host of the show, substitute host was reading a statement from the campaign about the offshore accounts. let's watch that. >> sure. >> this comes from romney spokesman. he hasn't paid a penny less in taxes by virtue of where these funds are domiciled. talking about bermuda and cayman island accounts. his liability is exactly the same if he held them in the u.s. as a u.s. citizen he's accountable for u.s. taxes, some investments in foreign countries can be tax havens, but mitt romney does not hold any such investments. >> and then at the end of that read they ran out of time before

you can make a comment. >> yeah. >> what were you going to say, if fox didn't have to go to a commercial? >> what i was going to say is how would we know? i mean, the bottom line is that because mitt romney has only released one year of his tax returns, even though he gave 23 years of tax returns to john mccain, we have no idea. we have only the word of a spokesperson that works for mitt romney, and that's why george romney, his own father when he ran for president, said at that that releasing one year of tax returns maybe an anomaly and it's not enough. he set a precedent of multiple years of tax returns so you had transparency and examine the finances of a candidate offering themselves for president. so mitt romney isn't willing to live up to his own father's standard or the standards of every major recent presidential candidate going back several decades. so we could actually see whether

or not mitt romney's spokesman is accurate if we could see what his finances are hiding. a bermuda corporation, swiss investments, cayman island investments. why doesn't an american businessman, lawrence, need to have a swiss bank account or a bermuda corporation? why did mitt romney transfer that bermuda corporation to a blind trust in his wife's name the day before he became governor? those are unanswered questions he needs to answer. >> if you ask me, it's to hide the money from taxation. thanks for joining us tonight. whenever they run out of time on fox news, you get to come here to complete the thought. >> this was so delicious. thank you so much. >> thank you. >> coming up, why having two people with die metrically opposing views fight it out on tv can turn out to be a very bad and dangerous idea and maybe lead to a case of attempted murder. that's in tonight's rewrite.

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remember crossfire tv, left/right arguments and people yelling at each other. cnn used to have a show called crossfire that did a lot of that. well, there's a show in jordan that should be called crossfire because when things got really out of hand, one of the arguers pulled a gun. that's next in the "rewrite." [ male announcer ] you sprayed them.

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and its wet mopping cloths can clean better in half the time. mom? ♪ ahhhh! ahhhh! no it's mommy! [ female announcer ] swiffer. better clean in half the time. or your money back. ♪ in tonight's "rewrite," whatever happened to cross fire tv? you know, i'm sometimes asked why i don't have two people we diametrically opposite views come on this program and fight it out. we used to have a lot of that kind of programming on cable news channels including this one. the original cable news show that specialized in left/right shouting matches was actually called "cross fire" and one day in 2004, jon stewart went on cross fire" to say he had had quite enough of cross fire. >> why do you argue? the two of you? i hate to see it. i made a special effort to come on the show today because i have

privately amongst my friends and occasionally newspapers and television show mentioned the show as being bad. and -- >> you noticed. >> and i felt that that wasn't fair and i should come here and tell you that i don't -- it's not so much that it's bad as it's hurting america. stop. stop, stop, stop hurting america. when you have people on for just knee jerk reactionary talk. >> i thought you were going to be funny, come on. >> no, i'm not going to be your monkey. >> what? go ahead. >> i watch your show every day and it kills me. >> i can tell you love it. >> it's so painful to watch. it's someone who watches your show and cannot take it anymore. i just can't. >> everyone in the cable news business stared at that jon stewart appearance on cross fire more than once and faster than he could have imagined cross fire and its imitators disappeared.

in this country anyway. but cross fire tv is alive and well in many other countries, and in jordan last week on a show that books opposing guests with the hope that they will get almost out of control, cross fire tv finally went where it was bound to go. somebody pulled a gun. >> and and yes, the control room

>> and and yes, the control room cuts the audio. and the guy with the gun could now face charges for attempted murder and defamation as if defamation mattered. and that, that is why i don't do cross fire tv. i don't want to be that guy, the hold them apart guy. i just -- no, no. and now we know jordanian television needs two things. one, metal detectors at their tv studios, and two, its very own jordanian jon stewart. [ male announcer ] wouldn't it be cool if we took the nissan altima and reimagined nearly everything in it? gave it greater horsepower and best in class 38 mpg highway... ...advanced headlights... ...and zero gravity seats?

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well, i certainly wouldn't nominate someone who i knew was going to come out with a decision i violently disagreed with, or vehemently disagreed

with and he reached a conclusion that i think was not accurate and not an appropriate conclusion. >> well, he was for him before he was against him. that was mitt romney last week talking about chief justice john roberts and why? he wouldn't now nominate someone like john roberts to the supreme court. here's what romney had to say about roberts during the primaries. >> quickly, with just a name, favorite supreme court justice. >> yes, roberts, thomas, alito and scalia. >> in my view if we had more justices like that, they might well decide to return this issue to states supposed to saying it's in the constitution. >> according to some reports no one is more disappointed in chief justice john roberts than some members of the supreme court. >> if he had been with the liberals from the beginning my sources say, that would have been one thing. but to have switched his position and relatively late in the process infuriated conservatives.

we don't know why he switched. he may have been focused solely on the law but that is not what some colleagues believe. >> joining me now jonathan truly, a constitutional law professor at george washington university. i always thought that justices changing sides during deliberations was not that uncommon. >> well, you're correct. in fact, chief justices can game the system because they're always the most senior justice, they can essentially take control of the drafting process. what i think is different here is that their chief justice didn't usually change. this is the first time in his entire history on the court that roberts switched to vote with the liberals in a 5-4 decision. this is a court that is replete with 5-4 decisions. i think what was shocking is not that a chief justice would do it, but ha this chief justice would do it. >> and you have the report

saying that the judges don't think that he was focusing on the law. they think he was focusing on something else. the justices who ended up in the minority who he abandoned. >> well, there's obviously a great deal of bad blood here. roberts' decision didn't sit well, obviously, with the conservative members of the court. it is also a departure for roberts. you know, his opinion didn't hold quite together as well as the opinions on either extreme. scalia's and ginsburg both were very consistent in how they viewed the question of federal authority, whether it was tax or whether it was the commerce clause. roberts had an opinion that seemed to rest uneasily within itself. i think that prompted many of the conservative justices to view him as trying to do something other than being consistent on principle. >> what's at stake on the composition of the supreme court in this presidential election. in the next presidential term, what retirements might we expect?

>> it's hard to say. first of all, i think for the last ten years, people have been calling and asking is it true that justice ginsburg is leaving tomorrow. >> she's 79 years old. >> yes, but the poor woman, the people have been writing her departure commentary for over a decade. she just said just recently, i'll be 80 next year. i don't think that's that old. but she is 79. the average life expectancy in the united states is 78, to give you a measure. you a measure. and you have scalia who is 76, you have kennedy who is 5. breyer who is 74. that's four of the nine. and so these are people automobile have great longevity. they have lifestyles that enable them to, frankly, to be healthy and productive longer in life. stevens just retired at 90. blackman retired at 85. so it's very hard to apply the measure for most people to members of this court.